Dispatches from the 10th Crusade

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Consider two cases about two tests. The first, Bartlett v. the New York State Board of Law Examiners, is from 1997. The other, Ricci v. DeStefano, is presently on appeal before the U. S. Supreme Court, which will issue its opinion sometime soon. In the first case, the jurist who issued the ruling was Judge Sonia Sotomayor when she served on the bench of the Federal District Court of the Southern District of New York. In the latter case, the Supreme Court will be assessing a Second Circuit Court of Appeals ruling in which Judge Sonia Sotomayor participated.

What follows is a summary of the first case, found in the article authored by Ruth Shalit, "Defining Disability Down," published in the August 25, 1997 issue of The New Republic:

Consider the lawsuit filed in 1993 by an aspiring attorney named Marilyn J. Bartlett. Bartlett graduated in 1991 from Vermont Law School, where she received generous accommodations for her reading disability and a disability in "phonological processing." Nonetheless, Bartlett did not do well, graduating with a GPA of 2.32 and a class standing of 143 out of 153 students. She then went to work as a professor of education at Dowling College, where, according to court documents, she "receives accommodations at work for her reading problems in the form of a full-time work-study student who assists her in reading and writing tasks."

When it came time to take the bar exam, Bartlett petitioned the New York Board of Law Examiners for special arrangements. She wanted unlimited time for the test, access to food and drink, a private room and the use of an amanuensis to record her answers. Acting on the advice of its own expert, who reported that Bartlett's test data did not support a diagnosis of a reading disorder, the board refused Bartlett's demands. Three times, Bartlett attempted the exam without accommodation. After her third failure, she sued the board.

On July 3, 1997, Judge Sonia Sotomayor ruled in Bartlett's favor. Ordering the board to provide the accommodations Bartlett had requested, she also awarded Bartlett $12,500 in compensatory damages. Judge Sotomayor did not challenge the board's contention that Bartlett was neither impaired nor disabled, at least not in the traditional sense. In an enterprising new twist, however, she declared that Bartlett's skills ought not to be compared to those of an "average person in the general population" but, rather, to an "average person with comparable training, skills and abilities"—i.e., to her fellow cohort of aspiring lawyers.

An "essential question" in the case, said the judge, was whether the plaintiff would "have a substantial impairment in performing [the] job" of a practicing lawyer. The answer to this question was "yes," the judge found. And this answer—the fact that Bartlett would have a very hard time meeting the job requirements of a practicing lawyer—was, in the judge's opinion, precisely the reason why Bartlett had a protected right to become a practicing lawyer. Thus, Judge Sotomayor ruled that Bartlett's "inability to be accommodated on the bar exam—and her accompanying impediment to becoming bar-admitted—exclude her from a 'class of jobs' under the ADA," and could not be permitted.

To drive home her point, Judge Sotomayor triumphantly cited Bartlett's performance during a courtroom demonstration of her reading skills. "Plaintiff read haltingly and laboriously, whispering and sounding out some words more than once under her breath before she spoke them aloud," the judge recalled. "She made one word identification error, reading the word 'indicted' as 'indicated.'"

It could, of course, be argued that the ability to read is an essential function of lawyering; that any law school graduate who cannot distinguish "indicated" from "indicted," who cannot perform cognitive tasks under time constraints, is incapable of performing the functions of a practicing lawyer and therefore, perhaps, should not be a practicing lawyer. But one would be arguing those things in the teeth of the law. Thanks to the Americans With Disabilities Act, the Individuals With Disabilities in Education Act and Section 504 of the Rehabilitation Act of 1973, Bartlett and her fellows among the learning-disabled are now eligible for a lifelong buffet of perks, special breaks and procedural protections, a web of entitlement that extends from cradle to grave.

Now, consider another test and another plaintiff of more recent vintage. It is the case of Ricci v. DeStefano. What follows is Stuart Taylor's summary of the case, published in December 2008 in National Journal Magazine.

Frank Ricci, a firefighter in New Haven, Conn., worked hard, played by the rules, and earned a promotion to fire lieutenant. But the city denied him the promotion because he is not black. Ricci sued, along with 16 other whites and one Hispanic firefighter. After a 7-6, near-party-line vote by a federal Appeals Court to dismiss the lawsuit, the plaintiffs petitioned for Supreme Court review.....

Ricci studied for eight to 13 hours a day to prepare for the combined written and oral exam in 2003 that he hoped would win him a promotion. He spent more than $1,000 buying the books that the city had suggested as homework and paying an acquaintance to read them onto audiotapes. (Ricci is dyslexic and learns better by listening.) And he got one of the highest scores.

But Ricci and other would-be lieutenants and captains with high scores did not get the promotions they expected. The reason was that -- because not enough black firefighters had done well enough to be eligible -- New Haven decided to discard the test results and make no promotions at all.

In their lawsuit, Ricci and his fellow plaintiffs claimed that the city, Mayor John DeStefano, and other defendants had violated their rights under the Constitution's equal protection clause and under federal civil-rights laws.

U.S. District Judge Janet Arterton of New Haven dismissed the case. A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit affirmed the dismissal, in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both.

Arterton was appointed by President Clinton. So were the three 2nd Circuit judges who heard the initial appeal, including Sonia Sotomayor, who is touted by liberal and Hispanic groups as a leading candidate for an Obama appointment to the Supreme Court. The three-judge panel initially deep-sixed the firefighters' appeal in a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.

Then the Circuit's more conservative judges got wind of the case. They sought to have it reheard by the full Appeals Court but lost in a 7-6 vote. All but one of the seven is a Clinton appointee. And all six of the dissenters were named by President George W. Bush or his father, with the exception of Jose Cabranes, a moderate Clinton appointee.

Writing for the six dissenters, Cabranes said that the majority "failed to grapple with the questions of exceptional importance raised in this appeal," and he urged the Supreme Court to do so. He also raised the question of whether the case involved "an unconstitutional racial quota or set-aside."

"At its core," Cabranes wrote, "this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"

Cabranes stressed that despite the importance of the issues and the unusually long and detailed briefs, arguments, and factual record, the three-judge panel's "perfunctory disposition" oddly contained "no reference whatsoever to the constitutional claims at the core of this case."

Five of the majority judges, including Sotomayor, retorted that New Haven's decision to discard the test results and deny what would otherwise have been virtually automatic promotions to the highest-scoring white and Hispanic firefighters was "facially race-neutral." The reason? Because none of the low-scoring, ineligible African-American firefighters was promoted either. These five judges also endorsed Judge Arterton's conclusion that the city's decision was justified by fears that promoting the high-scoring whites might violate Title VII of the 1964 Civil Rights Act and bring a discrimination suit by the low-scoring blacks....

Racial politics clearly did figure in the city's denial of promotions to the white and Hispanic firefighters. Politically powerful African-American leaders made it clear that if not enough blacks were eligible for promotion, then no whites should be promoted either. One was the Rev. Boise Kimber, who disrupted meetings of the city's civil service board and warned its members of a "political ramification" if they certified the exam results. Kimber was a key vote-getter for Mayor DeStefano, who had made the minister chairman of New Haven's Board of Fire Commissioners despite his 1996 felony convictions (reported by the New Haven Register) for perjury and stealing money from an elderly woman's burial fund.

Four questions:

If you were the New Haven fire department, would you hire Ms. Bartlett to represent you in a suit filed against you by Mr. Ricci?

If you were Ms. Bartlett and lived in New Haven and you were trapped in your burning home, would you find more comfort in Mr. Ricci arriving at your home or one of the other firefighters whose performance was not as good as his?

Are these two opinions consistent with each other?

And if so, what legal theory would best account for their consistency?

If you were the New Haven fire department, would you hire Ms. Bartlett to represent you in a suit filed against you by Mr. Ricci?

Yes, and then I would sue that the Americans with Disabilities Act had grossly mislead me and deprived me of legal council on the reasonable basis that had I known my lawyer couldn't read I would not have hired her.

If you were Ms. Bartlett and lived in New Haven and you were trapped in your burning home, would you find more comfort in Mr. Ricci arriving at your home or one of the other firefighters whose performance was not as good as his?

Lucky for Ms. Bartlett, her attendants are always in the wings and assure her of protection. But it is needless protection: in the brave new world of equality such a thing as fire visiting itself upon a random person, regardless of race or station in life, does not occur.

Are these two opinions consistent with each other?

No! After reading the first opinion I was convinced that all unqualified individuals should always get promoted, but I am distressed to find that no one was promoted in the latter case. What gives?

And if so, what legal theory would best account for their consistency?

Four answers:
1. If her specialty was civil rights and class action EEO lawsuits, I surely would.
2. I would want the firefighter with the best history of putting out fires, as opposed to doing well on exams.
3. Yes.
4. It is not a legal theory. Experience is the best teacher.

Difficult bonus answer:
May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?

According to civil rights law as it currently exists, it may do exactly that. Contending one point, the fact that previous tests over the years had produced a racially mixed pool of qualified applicants played a major factor in how the municipality ended up viewing the neutrality of this test from a new company.

The tale in the post is making a strange comparison. One case was about the conditions involved with taking the qualifying test, the other is about a pool of test results. I'm not sure they can be closely compared since they also involve different laws.

Remember, Mr. Ricci was learning impaired. What if he were given all the benefits provided to Ms. Bartlett for completing the bar exam? Would he then have a worse or better case against the Fire Department?

That one's a toughie Dr. Beckwith. We have already ventured into the land of faerie and now you are asking us to apply reason to it. Up is down and down is down; North and South point in the same direction. I can't get on my feet in this place.

The Journal reports that Sotomayor and "the presiding judge, Rosemary Pooler, fire questions at the firefighters’ lawyer, Karen Lee Torre." I think the following excerpt, in particular, is worth reading (though it's much more powerful listening Torre make her argument).

Judge Pooler asks (I assume Pooler is speaking because she is the only other judge identified by the Journal at the hearing) why the case of Hayden v. County of Nassau "isn't dispositive" in the Ricci case. Torre replies that in Hayden, "Nobody had lost anything. Nobody had taken the test yet. ... No one was hurt".

Judge Pooler interrupts and says that the district court judge said "no one was hurt here [in New Haven] either." Torre, flabbergasted, replies:

No one was hurt? For heaven's sakes, judge, if they didn't refuse to fill the vacancies, these men would be lieutenants and captains. How can you say they weren't hurt? They're out $1,000 a piece. Half of their marriages were strained by this. They spent 3 months of their lives holed up in a room like I was and you were when we took the bar exam.

So much for empathetic appeals.

Torre then argues that New Haven's decision to throw out an exam that tested vital knowledge for firefighters endangers lives, especially in a "post-9/11 era, no less":

I think a fundamental failure is the application of these concepts to this job as if these men were garbage collectors. This is a command position of a First Responder agency. The books you see piled on my desk are fire science books. These men face life threatening circumstances every time they go out. ... Please look at the examinations. ... You need to know: this is not an aptitude test. This is a high-level command position in a post-9/11 era no less. They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined space rescue, dirty bomb response, anthrax, metallurgy, and I opened my district court brief with a plea to the court to not treat these men in this profession as if it were unskilled labor. We don't do this to lawyers or doctors or nurses or captains or even real estate brokers. But somehow they treat firefighters as if it doesn't require any knowledge to do the job.

Oops. It looks like Torre just made an argument that was probably a little too classist for Judge Sotomayor's tastes. Nevertheless Torre continues to drive home the point that a mastery of the knowledge required to pass the test in New Haven could have saved lives:

Firefighters die every week in this country. ... [There was a case ] a few miles away where a young father and firefighter Eddie Ramos died after a truss roof collapsed in a warehouse fire because the person who commanded the scene decided to send men into an unoccupied house, with no people to save on Thanksgiving Day, with a truss roof known to collapse early in the fire because of the nature of the pins that hold the trusses together would have collapsed. And for 20 minutes he couldn't find any air and he he suffocated to death. And the fire chief had to go tell a 6 year-old that her father wasn't coming home. I'm not being histrionic. That happens all the time, and if you can't pass a competency exam and answer substantive job knowledge questions, I think that the only compelling governmental interest or Title 7 interest I see--

Then Judge Sotomayor interrupts:

JUDGE SOTOMAYOR: Counsel ... we're not suggesting that unqualified people be hired. The city's not suggesting that. All right? But there is a difference between where you score on the test and how many openings you have. And to the extent that there's an adverse impact on one group over the other, so that the first seven who are going to be hired only because of the vagrancies [sic] of the vacancies at that moment, not because you're unqualified--the pass rate is the pass rate--all right? But if your test is always going to put a certain group at the bottom of the pass rate so they're never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn't the city have an opportunity to try and look and see if it can develop that?
KAREN LEE TORRE: Because they already developed it, your honor.
JUDGE SOTOMAYOR: It assumes the answer. It assumes the answer which is that, um, the test is valid because we say it's valid.
KAREN LEE TORRE: The testing consultant said it was valid. He told them it was valid.... They had evidence that the test was job-related and valid for use under Title VII.

Sotomayor may have not wanted unqualified firefighters to be elevated to the position of captain and lieutenant--she simply wanted less qualified firefighters to be placed in charge of the lives of other men in the interests of racial diversity. I wonder what Eddie Ramos would say about that if he were alive today.

During her confirmation hearing, hopefully we will get to find out what evidence Sotomayor had to back up her claim that this test "is always going to put a certain group at the bottom". Did she actually examine the test to see if it was unfair to a particular group? And, how, precisely, does she think it's possible to create a test that "measures knowledge in a more substantive way"?

You know, I can't for the life of me imagine a technical test that was race discriminant. If I tried to write one I really can't image how I could accomplish it while maintaining even the semblance of it being a technical exam. Please consider this yourself for a moment and explain it to me if I am missing something. Honestly. And I'm not referring to things like the old poll tests; I mean something which really looks like a technical exam but isn't.

But if it is indeed just a technical exam, and then you argue that the technical material should be altered to even the numbers: this then is a racist argument. It asserts the very genetic and capability disparities that is the mother of all racism.

Brett, I'm sure you know the way liberal thinking has been on this for a long, long time: If it has "disparate impact," it doesn't matter if the content is obviously race-neutral and obviously important for the job. The test is "racist" and down with the test. I'm sorry to say that in a very odd argument in the University of Michigan case our own Justice Clarence Thomas appeared to imply that the LSAT (yes, you read that right) should be thrown out because it has disparate racial impact. The implication was embedded in a larger argument--and a rather subtle one--and I still haven't fully figured out if Thomas really meant that or if he was speaking tongue in cheek.

If "disparate impact" is a real measure of injustice, then "victims" of disparate impact should be assigned to their own ethnic communities. Nobody should mind, right? If the tests do not adequately measure the skill-set necessary for excellence in fire-fighting, then no harm is done if this suggestion were put in place.

Of course, it turns out that no one, regardless of race, ethnicity, or sexual orientation, wants to have in his or her neighborhood a Fire Department with the motto "We put diversity first."

It might help to quote the law governing this matter, which I hear is important if you're a judge:
Adverse impact and the “four-fifths rule.” A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.

And in Bushey v. New York State Civil Service Commission, the Second Circuit established as precedent the following remedy: "These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability."
h/t hilzoy

Heavens Lydia, you can't just say something like that about Justice Thomas and leave us in the lurch. I have been a bit feverish for the past hour reading through his opinion.

I went back and read the Grutter v. Bollinger opinion and he certainly admits that what you say may be the case. But he seems to imply that the race-neutral integrity of the LSAT might warrant a judicial review were it the subject of the case, but once the law school has adopted it as a standard they are obligated to use the results of the standard in accord with equal protection. Here are his closing remarks from the relevant section of the opinion.

Having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision. The Law School may freely continue to employ the LSAT and other allegedly merit-based standards in whatever fashion it likes. What the Equal Protection Clause forbids, but the Court today allows, is the use of these standards hand-in-hand with racial discrimination. An infinite variety of admissions methods are available to the Law School. Considering all of the radical thinking that has historically occurred at this country’s universities, the Law School’s intractable approach toward admissions is striking. The Court will not even deign to make the Law School try other methods, however, preferring instead to grant a 25-year license to violate the Constitution. And the same Court that had the courage to order the desegregation of all public schools in the South now fears, on the basis of platitudes rather than principle, to force the Law School to abandon a decidedly imperfect admissions regime that provides the basis for racial discrimination.

I indulge in this thread-jack because it actually bears upon the Ricci ruling since the question there relates to having accepted a standard and then not sticking to it.

I too cannot understand how you would write a technical skills-oriented test that would on it's face be racially discriminatory.

However, Ricci spent a thousand dollars and hundreds of hours studying. If you were the group of black firefighters and knew from the results of this case that the test results would be thrown out so long as all of you did poorly together, why would you spend a thousand dollars trying to do well enough?

By Sotomayer's argument, if two of the black firefighters had decided to work as hard as Ricci, and had therefore beaten out 2 of the white firefighters, then the test would have been acceptable.

Or worse, if knowing that, two of the white firefighters had decided to blow the test for the good of the others, it would have been OK.

I do however understand Sotomayer's argument about "groups at the bottom". Suppose you have a test where you know what it means to "pass", meaning to get enough right to be acceptable.

And suppose that you know that twice as many people will pass the test as there are jobs.

Well, in that case we KNOW that "some group", meaning half the people, will PASS THE TEST, thus demonstrating they are ACCEPTABLE, but will still not get the promotion.

In that contrived situation where you can be 100% sure that anybody who passed the test WILL IN FACT do a great job, you should probably do a random selection from the pool of passing applicants, rather than simply take the half with the highest score.

I say contrived because I've seen no indication that this test had a "passing grade" that proved you would be great at the job.

It might help to quote the law governing this matter, which I hear is important if you're a judge:
Adverse impact and the “four-fifths rule.” A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.

However, a 5/5 of Mr. Ricci is harmed as a consequence of this understanding. Clearly, then, this standard violates equal protection, since it is consistent with there being no injustice.

BTW, the New Haven Fire Department is not a federal enforcement agency. It was the fire department that called for a do-over, not the federal government.

BTW, the New Haven Fire Department is not a federal enforcement agency. It was the fire department that called for a do-over, not the federal government.

The EEOC has authority to investigate and prosecute all state and local governments. This is the core of the city's defense, as they had a convincing reason to believe they would be successfully sued under Title VII of the Civil Rights Act. Based on the Second Circuit's previous rulings, the action they took was fully within their right to avoid liability. If you wish to make the arguments that the city is required to incur EEO liability or that the Second Circuit should reverse its previous decisions (none of which warranted SCOTUS review) feel free, but my point is that this decision was easily within the current interpretation of law. Conservatives appear convinced that this was an activist court ruling when it was instead mainstream jurisprudence.

Everyone is given the same lessons with the same teachers in the same classrooms with the same time constraints using the same coarse materials and the same opportunities to study (or not) on their own.

Question: Where is the discrimination?

As I understand it, the New Haven test is under seal. That means we can not review the test to see which questions, if any, are racially biased.

The reason the test is sealed is because there is no racial bias in the test and making the test public would should show the test as race neutral.

None of this matter in an age of universal deceit.

The nomination of Judge Sotomayor will only accelerate the racial spoils system of each group fighting over the carcass of a dying America.

In the near future, the blind will sue to be hired as driving instructors and they will win that 'right'.

I wonder if the changing ethnicity of the NBA applies as an analogy. When white men cant jump, what do they do? I think that they compete in the way that suits their physical attributes. In the NBA, European players have raised their game to compete at the highest level, they didn't complain that the bar was too high, they came with another skill set and in fact, some white men can jump if they work at it long enough--at least well enough to attract college scouts and then the pro level.

Well, the same people that created the USSR and destroyed Russia, took control of the US and have now destroyed a once great land. Sure, laugh now. Scream about intolerance and hate. You ain't seen nothin' yet! They're gonna pull the pin on the economy. Because they are better than you. They were chosen to be your masters. Chosen by themselves.

"Conservatives appear convinced that this was an activist court ruling when it was instead mainstream jurisprudence."

Well. Should I gasp, or should I sigh?

Do you really think that we're all too stupid to notice that the the judicial activism of thirty years ago has become the "mainstream jurisprudence" of today? And do you really that we're all stupid & complacent enough to accept that?

Maybe it would help if you explained what you mean by "judicial activism."

In the Bartlett case, she was applying the Americans with Disabilities Act, which was passed by the Congress and signed by President Bush; she also applied the regulations promulgated by DOJ. That's what judges are supposed to do. You might not like the result, but surely you don't think she should refuse to apply the law on that basis. I will note, in addition, that her decision was affirmed by the 2nd Circuit.

In the Ricci case, she was again applying regulations promulgated by the executive branch under a statute (Title VII) enacted by the legislative branch. In so doing, she deferred to a decision by a state agency (the New Haven Fire Department) about the best way to comply with that law, and declined to set new precedent by declaring their application of the law unconstitutional.

I'm not aware of any definition of the term "judicial activism" that would encompass these two cases.

You're avoiding the question. How can judges enforcing a law passed by Congress and/or applying regulations promulgated by the executive branch be "judicial activism"? It's not. I repeat: judges deferring to the decisions of the elected branches of government is not judicial activism by any definition of that term I have ever heard of. If you have a different definition, I'd love to hear it.

More generally, affirmative action is not a judicially created policy. It's a product of the executive and legislative branches. The courts' primary role has been in limiting its application. So, I ask again, what does any of this have to do with judicial activism?

Certainly, I would concede that Brown v. Board of Education and its progeny can be fairly characterized as judicial activism, insofar as they declared de jure discrimination against blacks unconstitutional. Is that what you're complaining about? If so, yes, I would agree that your side lost that battle long ago.

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